Summary: We will not investigate this complaint about drainage from a public highway causing damage to Mrs X’s property. It is reasonable for Mrs X to take the matter to court.

The complaint

1. Mrs X complained the Council has not maintained the drains on a public highway which has caused damage to her property.
2. Mrs X said this caused distress.
3. Mrs X wants the Council to accept liability for the repairs or direct an independent contractor who can decide liability.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered information provided by Mrs X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
9. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
10. We will not investigate Mrs X’s complaint. We cannot decide liability for the damage to Mrs X’s property, only the courts can.

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Final decision

11. We will not investigate Mrs X’s complaint because it is reasonable for her to take the matter to court.

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Investigator's decision on behalf of the Ombudsman